Court to consider accommodations for religiously devout employees: In Plain English

Posted Tue, February 24th, 2015 9:49 pm by Amy Howe

Religion has been a hot topic at the Supreme Court recently. Last year, the Justices ruled that a town council could start its meetings with a prayer and also that a corporation owned by a devoutly religious family cannot be required to provide its female employees with health insurance that includes access to birth control that the employer equated with abortion. And earlier this year, it ruled that Arkansas cannot bar a Muslim inmate from growing the short beard that he believes his religion requires. The latest chapter on the role of religion in our daily lives comes tomorrow, when the Court hears oral arguments in the case of a Muslim woman whom the retail chain Abercrombie & Fitch declined to hire because she wore a headscarf. Let’s talk about EEOC v. Abercrombie & Fitch in Plain English.

In 2008, Samantha Elauf applied for a job as a salesperson at an Abercrombie children’s store in Oklahoma. Abercrombie & Fitch employees have to follow a dress code known as a “Look Policy,” which applies not only to clothes and jewelry but also to facial hair and shoes. Among other things, the policy – which is intended to promote a “preppy” aesthetic – also prohibits caps and black clothing. Elauf, then seventeen, is a Muslim who has worn a headscarf since she was thirteen because she believes it is required by her faith. For her interview with an assistant store manager, Elauf wore jeans, a T-shirt, and a black headscarf. The interview went well, but Elauf didn’t get the job; when a friend who worked at the store asked about the store’s decision, the assistant manager indicated that Elauf hadn’t been hired because of her headscarf.

Elauf complained to the Equal Employment Opportunity Commission, which filed a lawsuit on her behalf in federal court against Abercrombie. The government alleged that the store had violated Title VII of the Civil Rights Act of 1964, which prohibits employers from refusing to hire someone because of her religious practices unless the employer can show that it would be an “undue hardship” to make allowances for the practice. The store, the lawsuit contended, should have made an exception to its “Look Policy” to accommodate Elauf’s religious beliefs. The federal government won in the trial court, but Abercrombie won on appeal. The U.S. Court of Appeals for the Tenth Circuit, which hears federal appeals from Oklahoma, ruled that Abercrombie could not be held liable for violating anti-discrimination laws because it did not know, and Elauf had not told it, that she was wearing a headscarf for religious reasons. At the government’s request, the Supreme Court agreed to weigh in.

The federal government urges the Court to rule that a job applicant like Elauf should not be solely responsible for asking a would-be employer to accommodate her religious beliefs. Instead, it argues, an employer can’t refuse to hire someone based on its understanding of her religious practices if that understanding is correct – as it was in this case, when the assistant manager understood that Elauf was wearing the scarf because she is a Muslim, even if Elauf did not specifically say so. Otherwise, the government complains, employers could easily get around the anti-discrimination laws as long as they aren’t certain about an applicant’s religious practices. And, it adds, an employer is often in a better position than a would-be employee to know its rules and whether they might conflict with an employee’s religious practices.

Abercrombie counters that assigning that burden is far more complicated than the government would have the Court believe. How, it asks, are employers supposed to know whether an applicant will want or need an exemption from their rules? This is particularly difficult, it notes, when the anti-discrimination laws protect all would-be applicants, even if their religions aren’t well known or the members of that religion don’t necessarily agree on what their faith requires. Moreover, Abercrombie adds, an employer isn’t supposed to ask a job applicant about her religion at all. Even the EEOC’s earlier statements had previously acknowledged this difficulty, it points out, by requiring a job applicant to ask the employer to work with her to accommodate her religious beliefs. And that rule has worked well for over forty years. After tomorrow’s oral arguments, we’ll have a better sense of which rule will prevail for the future and what it will mean for religiously devout employees and job applicants; we’ll be back with a full report in Plain English.

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On Friday, April 3, Justice Stephen Breyer spoke to students at the United Nations International School in New York City. The justice gave his talk remotely via video call, while self-quarantining at home in Massachusetts with his wife and daughter.